Court Grants In Camera Review of Documents Despite Referee’s Decision, Noting Review is Standard Practice in Commercial Division

On January 20, 2024, Justice Andrea Masley granted a motion requesting in camera review of documents even after a discovery referee had declined to perform an in camera review. The decision in CWCapital Cobalt VR Ltd. v. CWCapital Investments LLC, et al., Index No. 653277/2018, vacated the referee’s order and allowed for in camera review of 35 emails exchanged between lawyers and nonlawyers over which the defendants had claimed attorney-client privilege. In granting the motion, Justice Masley indicated that in camera review has become common practice in the Commercial Division. The Court explained:

[T]he current practice in the Commercial Division favors performing reasonable in camera reviews . . . particularly when a discovery referee is in place. . . . this is so when the issue is one of the most intricate in commercial practice: whether settlement discussions among attorney sand businesspeople are prodominently legal or business in nature.

The attorneys at Schlam Stone & Dolan frequently litigate disputes concerning the discovery and privilege. Contact the Commercial Division Blog Committee at commercialdivisionblog@schlamstone.com if you or a client have questions concerning such issues.